01A24037_01A30514
09-25-2003
Velma L. Charles-Shanon, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Velma L. Charles-Shanon v. Department of Agriculture
01A24037 & 01A30514
September 25, 2003
.
Velma L. Charles-Shanon,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal Nos. 01A24037 & 01A30514
Agency No. 000222
Hearing No. 110-A1-7800X
DECISION
Pursuant to 20 C.F.R. � 1614.405, the Commission accepts the complainant's
appeals in the above-entitled matter. The issue on appeal is whether
complainant has established that she is entitled to compensatory damages
and attorney's fees beyond those awarded, pursuant to a Settlement
Agreement. Pursuant to complainant's request of November 27, 2002,
and for the sake of clarity and administrative economy, the Commission
hereby consolidates these appeals.
Complainant, at the time of the complaint, was employed as an
EEO Specialist, GS-14 at the agency's Office of Civil Rights,
Accountability Division, located in Washington, D.C. The record
reflects that complainant contacted an EEO counselor on September 21,
1999, regarding her non-selection as Environmental Coordinator and
filed a formal complaint of discrimination based on her race (Black)
and age (D.O.B.: 8/17/43) on December 7, 1999. The agency conducted
an investigation and provided complainant a copy of the Report of
Investigation on April 11, 2001. Complainant and the agency entered
into a confidential Settlement Agreement (Agreement) on April 11, 2002,
which provided, in pertinent part:
The agency agrees to pay properly-documented reasonable attorney's fees
related to complainant's non-selection for the Environmental Justice
Coordinator (EJC) position.
The agency agrees to pay complainant the amount of $2,500.00 for
alleged compensatory damages as a result of the Agency's non-selection
of complainant for the EJC position, and pay any additional proven
compensatory damages, including any claims for payment for use of sick
leave or administrative leave related to the Agency's non-selection
of complainant for the EJC position, as determined by the Office of
Civil Rights (OCR) of the United States Department of Agriculture as
set forth herein in the Agreement, and attorney's fees associated with
proving compensatory damages not to exceed $5,000.00.
Complainant or her attorney(s) will submit a petition for reasonable
attorney's fees related to complainant's non-selection for EJC position
to the Agency's representative within 30 days from the effective date
of Agreement. The agency will make a determination as to payment of
reasonable attorney's fees related to complainant's non-selection.
On April 26, 2002, complainant's attorney submitted a petition for
attorney's fees in the amount of $52,098.04, for the period from October
28, 1999 through April 26, 2002. Complainant's attorney requested
$51,202.50 for 212.40 hours (or 5.3.weeks) in attorney time and $895.91
in case-related expenses.
On June 10, 2002, complainant submitted documentation requesting
$300,000.00 in non-pecuniary and future pecuniary compensatory damages,
payment of past pecuniary damages in the form of complainant's medical
expenses, and restoration of 233.20 hours of sick leave and 148.10 hours
of annual leave.
On June 25, 2002, the agency determined that complainant was entitled
to attorney's fees in the amount of $36,024.38. The agency concluded
that this award reflects the reasonable amount of time expended in a
case of this nature and the hourly rate awarded to District of Columbia
attorneys with complainant's attorney's level of experience and the level
of experience of the associate attorneys who also worked on this case.
Specifically, the agency precluded the following from complainant's
petition:
The amount of $1,288.50, for 5.1 hours of work by complainant's attorneys
prior to the filing of the written complaint.
The amount of $2,091.00, for 10.2 hours of work preparing a district
court complaint which was never filed.
The amount of $895.41 for costs, because complainant's attorneys did
not provide any bills or invoices detailing how the final costs were
determined, and because the Agency cannot determine the nature of some
services or whether they were incurred during the relevant time period.
Finally, the agency determined that a 25% across-the-board reduction is
appropriate on the remainder of hours claimed because of the duplicative
and excessive nature of these hours. Thus, the agency determined that
a total fee award of $36,024.38 is appropriate.
On September 18, 2002, the agency issued a Final Agency Decision (FAD),
regarding compensatory damages. The agency found that complainant is
entitled to an award of pecuniary damages on the amount of $4,256.86,
or one-half of the charges presented, as compensation for prescriptive
drugs and medical services. The agency also found that complainant
is entitled to compensation for 211.3 hours, or one-half of the sick
and annual leave used during the period subsequent to the nonselection.
Specifically, the agency noted that complainant is not entitled to recover
damages associated with the pursuit of her complaint or due to aggravation
resulting from the process of pursuing her claim. The agency also found
that complainant stated that in her submission she �is not pressing,
at this time, for an award of future pecuniary damages� since she did
not have a letter from her doctor addressing the subject. Therefore,
the agency concluded that in the absence of any evidence to support
such damages, complainant is not entitled to future pecuniary damages.
The agency also awarded complainant $45,000.00 in nonpecuniary damages.
Specifically, the agency found that the length of time complainant
suffered emotional harm resulting from the non-selection was approximately
3 years. However, the same symptoms experienced by complainant subsequent
to the non-selection had manifested themselves more than a year and a half
earlier. The agency found that prior to the non-selection, complainant
had been admitted to hospitals twice for the same symptoms of anxiety
and depression. The agency also found that prior to the non-selection,
complainant had experienced stress at work severe enough for her to be
placed on leave by her physician, and she had described herself as �out
of control.� Further, complainant had a separate source of depression
as a result of the death of her parents. Finally, the agency concluded
that the totality of the evidence indicates that half of the emotional
harm experienced by complainant was unrelated to the non-selection.
On appeal, complainant's attorneys contends, among other things, that
despite the Agreement in which the agency agrees to pay reasonable
attorneys fees, the agency arbitrarily imposed a 31% cut on the firm's
bill, agreeing to pay only $36,024.38, or 69% of the bill for the
legal services actually performed on this case. Complainant contends
that the participation of the associate attorneys in the deposition was
essential, not duplicative, as the agency is aware, nor is the attorney's
consultation time excessive. Complainant further contends that after 3 �
years of EEO investigation and EEOC litigation, all in the administrative
process, it was quite reasonable and proper for complainant's attorneys to
prepare her case for District Court, and that these were not unnecessary
fees. Complainant stated that it is absurd and punitive for the agency
to insist on documentation of every expense, particularly when it is
well aware that the expenses have been incurred. Complainant argued
that the $895.91 in costs charged for basic, obvious expenses over the
course of a 3 � year case is minimal and clearly justified.
Regarding compensatory damages, complainant contends that the agency
made a serious error of interpretation in awarding her only half of her
non-pecuniary compensatory damages for emotional, mental, and physical
harm. Complainant alleged that the agency correctly determined that her
non-pecuniary compensatory damages were properly valued at $90,000.00,
and the agency decided it would pay only half, or $45,000.00. However,
complainant argued that it is clear from the record that the agency's
intentional, discriminatory non-selection exacerbated and aggravated
her preexisting conditions of anxiety and depression and resulted in
the harms she suffered, including several hospitalizations.
ANALYSIS AND FINDINGS
Attorney's Fees
By federal regulation, an agency shall award attorney's fees and costs
for the successful processing of an EEO complaint in accordance with the
existing case law and regulatory standards. See 29 C.F.R. 1614.501(e).
Such awards extend to complainants who enter into settlement
agreements. See Eaglin v. United States Postal Service, EEOC Request
No. 05910604 (August 22, 1991). A complainant who prevails through a
negotiated settlement is entitled to attorney's fees and costs under
the same standards as any other prevailing party. EEOC Management
Directive-110 (MD-110), as revised November 9, 1999, Chapter 11.
See Maher v. Cagne, 448 U.S. 122 (1980).
The award of attorney's fees is normally determined by multiplying the
number of hours reasonably expended by a reasonable hourly rate, also
known as a lodestar. See Hensley v. Eckerhart, 461 U.S. 424 (1983);
Blum v. Stenson, 465 U.S. 886 (1984); 29 C.F.R. 1614.501(e)(2)(ii)(B).
The attorney requesting the fee award has the burden of proving, by
specific evidence, entitlement to the requested award. See Copeland
v. Marshall, 641 F.2d 880, 892 (D.C. Cir. 1980).
The attorney for complainant contends that the agency's partial rejection
of his fee request is improper and that his request for fees should be
approved in its entirety, according to the settlement agreement which
established that the agency will pay for reasonable attorneys fees.
The agency responds that the fees requested in the total amount of
$52,098.04 have not been supported and are not reasonable. The agency
determined that amount of $36,024.38 represent a reasonable award.
We will address, individually, the reductions made by the agency.
The agency has refused reimbursement for the amount of $1,288.50 for
5.1 hours of work by complainant's attorney prior to the filing of the
written complaint. EEOC Regulation 29 C.F.R. � 1614.501(e)(iv) provides
that the agencies are not required to pay attorney's fees for services
performed during the pre-complaint process. Accordingly, we support
the agency's disallowance of $1,288.50.
The agency disallowed reimbursement for 10.2 hours of legal work performed
in connection with the preparation of a District Court complaint which
was never filed. The agency regards this number of hours as unnecessary
because complainant never filed a complaint in the District Court.
The record reveals that complainant's case was pending before the agency
for 3 � years, and that the attorneys prepared the complainant's case for
the next level of litigation in District Court. The record also reveals
that the case was settled, and that complainant did not file her case
in District Court. Under these circumstances, we find that the hours
that the attorneys in this case spent preparing a complaint for District
Court is reasonable representation. See Cornelius Driggins v. Federal
Reserve System, EEOC Appeal No. 01981514 (June 27, 200). We find that
after 3 � years in the administrative process, it is reasonable that
complainant's attorneys were preparing a District Court complaint.
See 29 C.F.R. � 1614.407(b) (authorizing complainant to file a civil
action after 180 days from the date of filing a complaint if an appeal
has not been filed and final action has not been taken). Accordingly,
we reject the agency's disallowance of $2,091.00, for 10.2 hours of work
preparing a District Court complaint.
The agency also disallowed the amount of $895.41 for costs, because
complainant's attorneys provided no documentation regarding these costs.
The record reveals that complainant's attorney argued that they incurred
basic expenses such as: postage, faxes, medical records, photocopies and
deposition transcripts. Complainant's attorney alleged that it is absurd
and punitive for the agency to insist on documentation of every expense,
even when the agency is well aware that the expenses have been incurred.
The record did not reveal any documentation to support the attorney's
expenses. The Commission has held that costs must be proved in the same
manner as fees are, and the complainant must provide documentation, such
as bills or receipts. See MD-110, Chapter 11 (stating that a verified
statement of fees and costs shall include documentation of costs).
Accordingly, we support the agency's disallowance of $895.41 for costs
and expenses.
As aforementioned, in addition to the reductions discussed above, the
agency held that a 25% across-the-board reduction is appropriate because
of the duplicative and excessive nature of the remaining hours.
When a fee reduction is in order based on excessive hours, it is not
necessary for the Commission
to "perform a detailed analysis to determine precisely the number of
hours or types of work for which no compensation is allowed; rather,
it is appropriate to reduce the hours claimed by an across-the-board
reduction." Abbate v. Department of the Navy, EEOC Appeal No. 01971418
(March 24, 2000) (citing Finch v. United States Postal Service,
EEOC Request No. 05880051 (July 15, 1988)). We find that, under the
circumstances of this case, any such across-the-board reduction is
inappropriate. The agency disallowed reimbursement for a variety of legal
services as "redundant," "duplicative," "unnecessary" or "excessive."
The agency offers very little by way of explanation for the disallowances
it has made on these grounds. For example, it disallows as "unnecessary"
22.5 hours of consultation between complainant and his attorneys.
This ignores the realities of the practice of law which may require
daily or even hourly contact between an attorney and his or her client.
The agency's other reductions for such activities as "preparation of
documents," "hearing participation," and "deposition attendance� are
similarly unsupported. We conclude that none of the legal services
the agency has characterized as redundant, duplicative, unnecessary,
or excessive will be disallowed. Therefore, we do not support the 25%
across-the-board reduction by the agency.
Non-Pecuniary Compensatory Damages
There is no precise formula for determining the amount of damages for
nonpecuniary losses, except that the award should reflect the nature and
severity of the harm and the duration or expected duration of the harm.
Loving v. Department of the Treasury, EEOC Appeal No. 01955789 (August 29,
1997); Rountree v. Department of Agriculture, EEOC Appeal No. 01941906
(July 7, 1995). We note that for a proper award of nonpecuniary damages,
the amount of the award should not be "monstrously" excessive standing
alone, should not be the product of passion or prejudice, and should be
consistent with the amount awarded in similar cases. See Ward-Jenkins
v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999).
The Commission applies the principle that "a tortfeasor takes its
victims as it finds them." Wallis v. United States Postal Service,
EEOC Appeal No. 01950510 (November 13, 1995) (quoting Williamson
v. Handy Button Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987).
The Commission also applies two exceptions to this general rule. First,
when a complainant has a preexisting condition, the agency is liable
only for the additional harm or aggravation caused by the discrimination.
Second, if the complainant's pre-existing condition inevitably would have
worsened, the agency is entitled to a reduction in damages reflecting
the extent to which the condition would have worsened even absent the
discrimination, the burden of proof being on the agency to establish the
extent of this entitlement. Wallis, EEOC Appeal No. 01950510 (citing
Maurer v. United States, 668 F.2d 98 (2d Cir. 1981); Finlay v. United
States Postal Service, EEOC Appeal No. 01942985 (April 29, 1997).
Because the medical record reveals that complainant was treated for
anxiety and depression prior to the discriminatory action, the agency
is liable for only the additional harm or aggravation resulting from
its discriminatory actions. Here, the agency discriminated against
complainant insofar as she was not selected for the EJC position on May
25, 1999. The same symptoms experienced by complainant subsequent to the
non-selection manifested themselves more than a year and half earlier.
Prior to the non-selection, complainant had been admitted to hospitals
twice for the same symptoms of anxiety and depression. The record
reveals that prior to the non-selection, complainant had experience
stress at work severe enough to be placed on leave by her physician, and
she had described herself as �out of control.� The record also reveals
that complainant had a separate source of depression as a result of the
death of her parents.
In the present case, complainant clearly had a preexisting condition.
She first sought treatment for depression and anxiety in 1998. It is
clear, however, that complainant's condition was exacerbated by the
nonselection. Therefore, the Commission finds that the agency is liable
for the harm or aggravation caused by the agency's nonselection. The
record establishes that the length of time complainant suffered additional
emotional harm resulting from the non-selection was approximately three
(3) years. Where a complainant has a preexisting emotional condition,
and the condition deteriorates as a result of discriminatory conduct,
the additional harm is compensable. We find that the agency is entitled
to a reduction in damages, because of complainant's preexisting condition.
We find that $90,000.00 is an appropriate award of non-pecuniary
compensatory damages. However, because complainant's preexisting
condition, we conclude that the agency's one-half reduction of the
amount is appropriate. Recent Commission decisions awarding nonpecuniary
damages for emotional harm in cases similar to complainant's range from
approximately $90,000.00 - $80,000.00. See Bahaudin v. Department of
the Army, EEOC Appeal No. 01993594 (September 13, 2000) ($85,000.00
award where complainant produced evidence indicating that the agency's
discriminatory actions caused him to, among other things, become very
irritable; distant; wake up at night and make sudden jerking movements;
not want to go work; just lay in bed when he was not working; neglect his
home duties; and not eat); Bernard v. Department of Veterans' Affairs,
EEOC Appeal No. 01942985 (July 17, 1998) ($80,000.00 award for emotional
distress caused by a long term denial of reasonable accommodation and a
discriminatory non-selection where numerous witnesses testified regarding
negative effects on the complainant's emotional and physical health)).
Having carefully considered all the facts of this case, the Commission
finds that an award of $45,000.00 in non-pecuniary damages is appropriate.
In reaching this amount, the Commission has considered a number of
factors, such as the nature, severity and duration of the emotional pain
and suffering. We considered the evidence concerning complainant's
emotional distress described in the affidavits of complainant and her
family members. Additionally, we considered the amounts awarded in
other similar cases.
Pecuniary Compensatory Damages
Complainant may be awarded damages for pecuniary losses which are
directly or proximately caused by the agency's discriminatory conduct.
EEOC Guidance: Compensatory and Punitive Damages Available Under Section
102 of the Civil Rights Act of 1991, EEOC Notice No. N 915.002 (July
14, 1992), at 8. Pecuniary losses are out of pocket expenses that
are incurred as a result of the employer's unlawful action, including
job-hunting expenses, moving expenses, medical expenses, psychiatric
expenses, physical therapy expenses and other quantifiable out of pocket
expenses. Id. Past pecuniary losses are the losses that are incurred prior
to the resolution of a complaint via a finding of discrimination, an offer
of full relief, or a voluntary settlement, while future pecuniary losses
are those likely to occur after the resolution of the complaint. Id. at
8-9. Benefits received by a complainant from a source collateral to the
agency may not be used to reduce the agency's liability for damages.
See Finlay v. United States Postal Service, EEOC Appeal No. 01942985
(Apr. 29, 1997). Complainant, in her appeal, requests $8,513.72 for past
pecuniary damages in charges for psychiatric treatment. Complainant
alleged that this amount includes prescription drugs, outpatient care,
and inpatient care at INOVA Fairfax Hospital and the Psychiatric Institute
of Washington, DC. Complainant also contends that these charges were
incurred between 2000 and 2001, primarily in March and April of 2001, when
she was twice hospitalized for major depression and suicidal thoughts.
The agency found that complainant was entitled to an award of $4,256.86,
or one-half of the charges presented, as compensation for prescription
drugs and medical services. The agency concluded that complainant is not
entitled to recover damages associated with the pursuit of her complaint
or due to aggravation resulting from the process of pursuing her claim.
We find that complainant provided proof through bills and receipts of
past expenses. Our policy in cases where complainant had pre-existing
emotional difficulties and discrimination causes her mental health to
deteriorate, the agency is liable for the additional emotional harm. We
find that complainant claims past medical expenses $8,513.72 for treatment
she received from various medical professionals for major depression.
We find that complainant's bills reveal that complainant was treated for
major depression related to her non-selection. However, we find that
complainant was treated for major depression before the non-selection,
and that complainant failed to prove that all of her expenses were
directly or proximately caused by the agency's discriminatory conduct.
Therefore, we affirm the agency's decision that complainant is entitled
to an award of $4,256.86, or one-half of the charges presented, for past
medical expenses.
Complainant provided no evidence of future pecuniary losses. Accordingly,
complainant is not entitled to future pecuniary damages.
Equitable Relief
With regard to complainant's claim for leave restoration and based
on the aforementioned reasoning, the Commission supports the agency's
decision that complainant is entitled to compensation for 211.3 hours,
or one-half of the sick and annual leave used during the period subsequent
to the non-selection.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the
Equal Employment Opportunity Commission to direct the agency to award
complainant relief as specified in our order below.
ORDER (C0900)
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall:
award complainant the sum of $4,256.86 in past pecuniary damages, and
the sum of $45,000.00 in non-pecuniary damages;
restore to complainant 211.3 hours of sick and annual leave;
provide complainant with an award of reasonably attorney's fees for the
amount of $49,914.13.
A copy of all documentation effectuating this Order, as well as any
final decisions or written explanations provided pursuant to this Order,
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 25, 2003
__________________
Date